STRIKE OUT APPLICATION AGAINST STATUTORY CHALLENGE UNDER SECTION 288 SUCCESSFUL

Brent London Borough Council v. Secretary of State for Communities and Local Government and Ashia Centur Limited [2008] EWHC 1991 (Admin)

Ashia Centur, the interested party, made an application under the Civil Procedure Rules to strike out a Statutory Challenge brought by Brent Council against the decision of an inspector appointed by the Secretary of State to grant a Certificate of Lawful Development.

The Certificate was granted in favour of Ashia Centur for the removal of tipped spoil and the erection of an Asian centre comprising hotel, television centre, social, community and leisure facilities (including open space and a canal footbridge) with service roads and car parking.

Brent Council had resisted the issue of the Certificate at the public inquiry. The inspector had found that there was not a "scintilla of doubt" that the Certificate should be granted and also awarded costs against Brent Council for its unreasonable behaviour in respect of the appeal and its refusal to grant a certificate.

Notwithstanding the inspector's clear findings, Brent Council instituted a challenge to his decision under section 288 of the Town and Country Planning Act 1990.

Ashia Centur made an application to strike out the claim on the grounds that it was unmeritorious and disclosed no reasonable prospect of success.

After considering the grounds upon which the challenge under section 288 had been brought Lloyd Jones J accepted the submissions on behalf of Ashia Centur and made an order striking out the claim brought by Brent Council.

This decision is of significance as it meant that the Court did not consider that the challenge by Brent Council should be allowed to proceed to a full hearing. As there is no equivalent "permission" stage for section 288 challenges such as there is in respect of judical review proceedings, this demonstrates that the provisions of the Civil Procedure Rules can nonetheless in the appropriate cases be deployed in order to sift out unmeritorious challenges at an early stage.

Saira Kabir Sheikh represented the applicant, Ashia Centur Limited.